Pandey & Ors Vs. State of Bihar  Insc
46 (18 January 2005)
& Arun Kumar B.P.Singh,J.
seven appellants before us were tried along with five others by the First
Additional Sessions Judge, Bhabua (Kaimur) in Sessions Trial No. 242/5 of
1995/1999 charged of the offences under Sections 302/34, 120B, 364 and 384/34
IPC and Section 27 of the Arms Act.
Trial Court by its Judgment and Order dated 13th August, 1999 found the
appellants guilty of the offence under Sections 302/149, 384/149 and Section 27
of the Arms Act. It sentenced them to undergo imprisonment for life under
Section 302/149 IPC and further sentenced them to undergo 1 year rigorous
imprisonment under Section 27 of the Arms Act. It, however, acquitted four of
the accused persons of all the charges levelled against them primarily on the
ground that they were not named in the First Information Report. All the
convicted persons preferred appeals before the High Court being Criminal Appeal
Nos. DB455 and 464 of 1999. The State also preferred Government Appeal
No.20/1999 against the acquittal of the remaining accused. The High Court by
its impugned judgment and order dismissed the appeals preferred by the
appellants as well as the Government Appeal preferred by the State. Seven of
the appellants have preferred these appeals by special leave.
case of the prosecution is that an occurrence took place on 28th August, 1994 at about 9.00 A.M. in village Dawanpur which falls within the jurisdiction of
police station Bhagwanpur in the District of Kaimur, Bihar in which five members of the family of the informant
were killed. According to the prosecution 18-20 armed people in khaki uniform
came to the dalan of the deceased. Five male members of the family (since
deceased) who were sitting in the dalan of the house after taking their
breakfast were surrounded by them. PW8, a female member of the family rushed to
the door and finding so many persons armed with fire arms closed the door and
rushed inside the house. She along with three other female members of the
family went to the roof of the house along with the licensed gun of one of the
deceased and a bundle of cartridges. From the roof of the house she and the
other female members saw that those people who had surrounded the deceased had
tied their hands behind their back. They were demanding the gun and the
cartridges. The father-in-law of PW8 implored PW8 to give away the gun
otherwise all of them will be killed. Heeding to his advise, she threw the gun
from the roof along with the cartridges. One of the members of the mob picked
up the gun and cartridges whereafter all five male members of the family whose
hands had been tied were taken by the mob towards the South. Soon thereafter
the female members of the family heard the sound of gun shots 10-15 in number.
Later they were informed that all the persons who had been taken away by the
mob have been shot dead. These four female members of the family are PW 5, 6, 7
case of the prosecution is that PW10, Sub Inspector of Police at the police
station got some information from a passerby that an occurrence had taken place
in village Dawanpur. He, therefore, rushed to the village where on his request
PW5 opened the door and on his questioning her narrated the incident to him.
The report was taken down in writing on the basis of which a formal first
information report was drawn up.
Sanjay - the son of PW8 stated that he had seen the actual incident in which
all the five members of his family were shot dead and he had thereafter
informed his uncle Dadan Pandey (PW4) about the occurrence. It is not necessary
to advert to their evidence because the Courts below have not relied upon their
evidence. As noticed earlier, the Trial Court on the basis of the evidence
primarily of the four female members of the family (Pws 5 to 8) convicted the
appellants, and the High Court in appeal has affirmed the conviction.
sought to be argued before us that the evidence of the female witnesses is
unnatural and should not be accepted. It was also submitted that having picked
up the gun and the cartridges they did not resort to firing thereafter, and
simply went to the roof of the house only to watch what has happening below. It
was further submitted that PW8 who was the first person to come to the door
from where the dalan was visible rushed back saying that the miscreants had
come. It was only later that from the terrace she identified the members of the
mob. The submission is that she was not able to identify them initially and
only later she claims to have identified them. Learned Counsel also contends
that Section 149 will not apply to the facts of this case because the evidence
on record and the findings recorded by the Courts below do not establish that
the unlawful assembly had the common object of committing the murder of the
deceased. Much was sought to be made of an observation in the judgment of the
High Court that the prosecution had left the Court guessing as to whether the
miscreants had come to kill the five persons or they had come to commit dacoity
or they simply wanted the gun. From this observation it was sought to be urged
that even the High Court was not clear as to what was the common object of the
said unlawful assembly. He, therefore, submitted that the conviction under
Section 302 read with Section 149 IPC is not warranted.
the assistance of the Counsel for the parties we have gone through the evidence
on record. We find no reason to disbelieve PW5 to PW8 who witnessed the first
part of the occurrence which took place in the dalan of their house. From their
evidence it is established that a mob of about 18-20 persons had come to their dalan
armed with fire arms. At least 10 of them could be identified by name. They
surrounded the five male members of the family who were sitting in the dalan.
They thereafter tied their hands and demanded their gun. For fear that all of
them will be killed, PW8 who had gone to the terrace along with the gun and
cartridges threw away the gun and cartridges which was picked by the miscreants.
Thereafter the miscreants took the male members of the family along with them
and moved in the southward direction. After sometime, the female members of the
family heard sound of gun shots. Sometime later they were informed that all the
five members of the family had been shot dead in an orchard which was situated
about one furlong from their house.
these facts, we have no doubt that the offence under Section 302/149 is proved.
Learned Counsel submitted that circumstantial evidence must conclusively prove
the commission of the offence under Section 302/149 IPC and the facts found
should not be consistent with any other hypothesis except the guilt of the
observe that this is not a case which is based entirely on circumstantial evidence.
The first part of the occurrence took place in the dalan of the deceased.
Thereafter they were taken away by the mob. It is the prosecution case that
later they were shot dead in an orchard nearby.
first part of the occurrence is, therefore, proved by direct evidence. The only
question which arises for consideration is whether the second part of the
incident namely the killing of the five members of the family can be attributed
to the appellants on the basis of the evidence on record.
is held that there was an unlawful assembly which had an illegal common object,
inasmuch as all of them came armed with fire arms to the house of the deceased,
the only question which remains to be considered is as to what was the common
unlawful object of that assembly: whether they intended to cause the death of
the deceased or whether they simply intended to abduct them or commit any other
offence. This is what precisely the High Court has observed in paragraph 17 of
its Judgment. It may be that one or all of these unlawful acts were the
objectives of the unlawful assembly. The mob after coming to the dalan of the
deceased forced them to handover their gun by show of force. An offence under
Section 384 was, therefore, clearly made out and with the aid of Section 149
IPC all the appellants can be held guilty of that offence.
next question is whether they can also be held vicariously liable for the
offence of murder. Once it is held that there was an unlawful assembly and all
the appellants came to the dalan of the deceased armed with deadly weapons like
fire arms, and after tying the hands of the deceased took them away, and soon
thereafter gun shots were heard and the deceased were found to have been shot
dead in the orchard nearby, no other inference except the inference of guilt
can be drawn from these circumstances. There is no material on record even to
suggest indirectly that the offence was committed by any other person or
persons, or that some of the persons who were initially members of the unlawful
assembly disassociated themselves and did not participate in the offence of
murder. In the absence of any such plea or material on record the application
of Section 149 IPCcannot be doubted. Having regard to the facts of the case,
particularly the fact that all the members of the mob had come armed with fire
arms i.e. deadly weapons with a view to commit the offence under Section 384
IPC, all the members of the assembly must be attributed the knowledge that it
was likely that the offence of murder may be committed in prosecution of that
object. This is particularly so because all the appellants were carrying fire
arms and had acted in a high handed manner in broad day light leaving no doubt
about their intentions. It may be that the actual shooting may have been done
by one or some of the appellants only, but applying the principle enshrined in
Section 149, each one of them must be held vicariously liable for the offence
committed even by some of them.
otherwise the facts lead to the only conclusion that the unlawful assembly had
come determined to commit the offence of murder. They were all armed, came
together and abducted the deceased who were soon thereafter murdered using fire
are, therefore, of the view that the conviction of the appellants is justified.
There is no merit in these appeals and the same are, accordingly, dismissed.